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Published: Thursday, 3/31/2005

Ohio defends 'supermax' prison transfer policy

BY MICHAEL McGOUGH
BLADE WASHINGTON BUREAU

WASHINGTON - Ohio Attorney General Jim Petro asked the U.S. Supreme Court yesterday to reverse two lower federal courts and uphold the state's procedures for transferring prisoners to a "super-maximum security" prison.

Calling the decision to move prisoners to the 500-bed Ohio State Penitentiary in Youngstown a decision that reflects both their past misconduct and future dangerousness, Mr. Petro said: "The government needs to have the capacity and ability to make the best possible decision in light of all possible factors."

But University of Pittsburgh law professor Jules Lobel, representing a group of Ohio inmates, told the justices that the state's revised procedures for approving transfers to the "supermax" facility give prisoners only vague notice of why they are being subjected to as many as three years in solitary confinement.

Mr. Lobel summarized the explanation given to prisoners in the past as: "I'm putting you in there, and I'm not giving you a reason."

Under the Constitution's guarantee of due process, Mr. Lobel said, a prisoner is entitled to a summary of the reasons for his transfer that is "detailed enough for him to reply."

Mr. Lobel asked the court to affirm a ruling by the 6th U.S. Circuit Court of Appeals requiring the Ohio prison system to tell an inmate in writing why he's being transferred to "supermax"; to allow the prisoner to call witnesses at a transfer hearing; and to advise the prisoner of what he must do to be returned to the general population.

Mr. Petro, who is seeking the Republican nomination for governor in 2006, encountered his share of tough questions in his first appearance before the nation's highest court as attorney general.

Justice Antonin Scalia, though sympathetic to Ohio's position, chided Mr. Petro for having conceded that prisoners could ever have a "liberty" interest in not being sent to maximum security. Justices David Souter and John Paul Stevens, who took a more skeptical view of the state's conduct, pressed the attorney general about whether Ohio afforded due process to inmates chosen for "supermax" classification.

"I'm asking you what you tell the inmate," Justice Souter said with exasperation after apparently finding Mr. Petro's earlier answers to similar questions unresponsive. Justice Stevens sarcastically asked Mr. Petro: "Should we consider it normal practice to keep people in solitary confinement for 24 hours a day?"

In a hearing in which both justices and lawyers struggled to distinguish between different versions of Ohio's rules - both of which have been shelved by lower federal courts - a majority of the court seemed inclined to give the state the benefit of the doubt.

When Mr. Lobel suggested that prisoners were given only a vague explanation of why there were reclassified as maximum-security inmates, Justice Sandra Day O'Connor protested: "I mean, this is a prison classification, for goodness' sake!"

Contact Michael McGough at:

mmcgough@nationalpress.com

or 202-662-7070.



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